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This is not legal advice, which can only be given by an attorney admitted to practice law in your jurisdiction after hearing all of the facts and circumstances in a particular case.

Monday, April 11, 2011

New York Times Tells of Trans Job Lawsuit

The New York Times op-ed section brings word of an unusual lawsuit this morning. The Transgender Legal Defense and Education Fund (TLDEF) has brought a lawsuit on behalf of El'Jai Devoureau (first name pronounced like LJ).
El'Jai was hired by a drug testing company to watch testees produce urine samples, presumably to ensure it was done properly and no switching of samples occurred. Word reached his supervisor that he is a transgender man. The supervisor asked for evidence of surgery, and El'Jai said that is private. He was fired.
This is an extremely important lawsuit because the questions to be addressed include whether being male in a particular way specified by the employer is a "bona fide" occupational qualification (BFOQ) and whether El'Jai qualifies as a male. BFOQ lawsuits in regard to sex are rare, and not as simple as they might seem.
It's particularly informative that TLDEF's legal partners in this suit are a major international law firm, Gibson, Dunn & Crutcher, and a highly respected local firm, Stein, McGuire, Pantages & Gigl. Firms like that don't take a case, particularly a pro bono case, unless they've got the law and the facts they see as likely to be successful. Furthermore, as impact litigation, which attempts to create useful precedents and, above all, to do no harm to the interests of the disadvantaged constituency it seeks to help, this one goes straight to the heart of trans advocacy: who is a man?
The complaint specifically states that "He has permanently transitioned to male and his government-issued identification documents reflect the fact that he is male. Defendants hired him as a man."
It should be noted that New Jersey is the only state that has an appellate precedent squarely on point in favor of transsexuals, ruling that a transsexual person is to be considered according to the sex with which he or she identifies. In MT v. JT, 355 A.2d 204 (N.J. App. Div. 1976), a New Jersey appeals court held that "if the anatomical or genital features of a genuine transsexual are made to conform to the person's gender, psyche or psychological sex, then identity by sex must be governed by the congruence of these standards." Almost every other court in the U.S. that has considered the issue has gone in the other direction. While that case involved a question of alimony after divorce, the court in the current case may find this reasoning persuasive, and perhaps even binding. Thus, while bringing a case like this could be extremely dangerous, it's probably better brought in New Jersey more than any other state in the nation.
I've also discussed the BFOQ requirement in past posts. Essentially, it means that being a male is part of the qualifications of the job. This cannot be on the basis of stereotypes, such as that the job requires strength or is dangerous. A woman who has the strength and the ability to do a hard or dangerous job must not be disbarred from doing so by reason of her gender. In the case of watching men give urine samples, the idea, I suppose, is that respect for the privacy of the men requires that they not be subjected to the scrutiny of a female while performing such intimate acts. If El'Jai were a female, that reasoning would hold. As noted, however, the complaint specifically states that "He has permanently transitioned to male and his government-issued identification documents reflect the fact that he is male. Defendants hired him as a man." If El'Jai's employees think he is not a man, is their subjective judgment more pertinent than that of the State of New Jersey?
The complaint more specifically states "As reflected on official government documentation, both federally and at the state level, he is appropriately recognized as male, including on his driver's license (New Jersey), his Social Security records (federal), and his birth certificate (Georgia)."
I think it interesting that there are three counts to the complaint, one for sex discrimination, one for gender identity discrimination and one for disability discrimination. While some legal advocates have indicated that they would not bring a claim based on disability discrimination because it may be considered by some to be disrespectful and perhaps even undercutting to the client's claim, I agree that this is an appropriate legal claim in most instances because it underscores the nature of the discrimination against transsexuals -- not only discrimination based on physical attributes, but discrimination based on psychological identity. But reasonable people can disagree on that issue.
Kudos to Michael Silverman of TLDEF, and to the other intrepid attorneys who will no doubt provide excellent representation to Mr. Devoureau.

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